The Supreme Court of the United States (SCOTUS) issued a landmark ruling last month in Sackett v. EPA which significantly narrowed much of the federal government's protections for wetlands, tributaries and streams as “waters of the U.S.” (WOTUS) under the Clean Water Act (CWA).  

While litigious environmental organizations expressed immediate dismay following the Sackett ruling, the decision was greeted with elation by agricultural water users and their political supporters across the West.

It’s a game changer and a monumental victory for irrigated agriculture. No longer will farmers be required to hire an army of consultants just to figure out whether a wet spot on their property is regulated under the CWA.

At the Family Farm Alliance, we’ve been tracking the WOTUS “ping pong” game for the past 15-plus years, as CWA implementation changes with every new occupant in the White House. The Alliance was also part of an “agriculture” amicus brief in support of the Sacketts that was submitted to the Supreme Court last year.

At issue is the reliance on the “significant nexus” test from the muddled SCOTUS Rapanos decision in the Biden WOTUS rule. In a nutshell, the Sackett decision has eliminated the “significant nexus” test for a “relatively permanent” test. 

The Court ruled that in order to assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

Justice Samuel Alito wrote the 5-4 majority decision, while Justice Brett Kavanaugh split from the rest of the Republican-appointed Supreme Court judges. The court’s three liberal justices—Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—joined Justice Kavanaugh to argue that the majority’s definition of wetlands covered by the law was too narrow. 

Now that the Supreme Court has issued its decision, GOP members of Congress are calling on the Biden Administration to withdraw its proposed WOTUS rule. Republicans in both chambers have had the Biden Administration’s WOTUS rule in their sights throughout the new 117^th Congress.

This decision makes things much clearer from a jurisdictional interpretation standpoint and turns the world of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) upside down. Some legal experts predict that many property interests may run to court in an effort to declare that their particular water body is not a WOTUS. EPA and Corps are frozen, and it remains to be seen what will be done regarding the Biden administration’s new regulation defining WOTUS, which would be the third version of the rule in less than a decade.

We agree with Damien Schiff, the Pacific Legal Foundation attorney who represented the Sacketts in this case.

This ruling returns the scope of the Clean Water Act to its original and proper limits.

[Keppen is executive director of the Family Farm Alliance.]